[Senate Report 117-227]
[From the U.S. Government Publishing Office]
Calendar No. 586
117th Congress } { Report
SENATE
2d Session } { 117-227
_______________________________________________________________________
BUY AMERICAN.GOV ACT OF 2021
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 732
TO STRENGTHEN BUY AMERICAN REQUIREMENTS,
AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 5, 2022.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
39-010 WASHINGTON : 2022
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Michelle M. Benecke, Senior Counsel
Pamela Thiessen, Minority Staff Director
Sam J. Mulopulos, Minority Deputy Staff Director
Laura W. Kilbride, Chief Clerk
Calendar No. 586
117th Congress } { Report
SENATE
2d Session } { 117-227
======================================================================
BUY AMERICAN.GOV ACT OF 2021
_______
December 5, 2022.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 732]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 732) to strengthen
Buy American requirements, and for other purposes, having
considered the same, reports favorably thereon with an
amendment, in the nature of a substitute, and recommends that
the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary.............................................. 1
II. Background and Need for the Legislation.......................... 2
III. Legislative History.............................................. 3
IV. Section-by-Section Analysis...................................... 3
V. Evaluation of Regulatory Impact.................................. 5
VI. Changes in Existing Law Made by the Bill, as Reported............ 5
I. PURPOSE AND SUMMARY
S. 732, the BuyAmerican.gov Act of 2021, directs the
General Services Administration (GSA) to establish a website,
BuyAmerican.gov, that will be used to publish information about
waivers and exceptions to domestic procurement preference
measures, collectively referred to as ``Buy American laws.''\1\
Specifically, the website will collect information about
waivers of Buy American laws that have been requested, are
under consideration, or have been granted. The website will be
designed to ensure manufacturers and other interested members
of the public have an opportunity to learn of waiver requests
early in the approval process. S. 732 also requires the
Administrator of GSA to develop a centralized mechanism for
collecting waiver requests.
---------------------------------------------------------------------------
\1\This bill covers any law, regulation, Executive Order, or rule
relating to federal contracts, grants, or financial assistance that
requires or provides a preference for the purchase or use of goods,
products, or materials mined, produced, or manufactured in the United
States, including: chapter 83 of title 41, United States Code (commonly
referred to as the ``Buy American Act''); section 5323(j) of title 49,
United States Code; (C) section 313 of title 23, United States Code;
section 50101 of title 49, United States Code; section 24405 of title
49, United States Code; section 608 of the Federal Water Pollution
Control Act (33 U.S.C. 1388); section 1452(a)(4) of the Safe Drinking
Water Act (42 U.S.C. 300j-12(a)(4)); section 5035 of the Water
Resources Reform and Development Act of 2014 (33 U.S.C. 3914); section
2533a of title 10, United States Code (commonly referred to as the
``Berry Amendment''); section 2533b of title 10, United States Code;
and, section 604 of the American Recovery and Reinvestment Act of 2009
(6 U.S.C. 453b).
---------------------------------------------------------------------------
II. BACKGROUND AND THE NEED FOR LEGISLATION
There are generally two categories of domestic content
preferences in U.S. law and regulation. The first are Buy
America preferences, which apply to federally funded public
works and infrastructure projects, such as the construction of
highways, railways, and rapid transit systems. The second is
the preference for items procured directly by the federal
government. This includes the Buy American Act of 1933, which
gives a preference for federal agencies to procure domestically
produced goods.\2\ It also includes the Berry Amendment,\3\ a
group of domestic sourcing restrictions passed by Congress in
1941 that applies to the Department of Defense.
---------------------------------------------------------------------------
\2\41 U.S.C. Sec. 8302.
\3\10 U.S.C. Sec. 2533a.
---------------------------------------------------------------------------
Typically, Buy American requirements can be waived by an
administering agency if applying the domestic content
requirements would be (1) inconsistent with the public
interest, (2) if the procured materials are not produced in
sufficient quantities in the United States, or (3) if adhering
to the Buy American requirements would increase the cost of the
overall project by a certain percent.
From 2012 through 2016, federal agencies granted 388,953
Buy American waivers in order to source products manufactured
outside the United States. The Department of Defense (DoD)
granted over 230,000 waivers during that period, amounting to
$1.3 billion worth of products procured from non-domestic
sources.\4\ Since these waivers are often granted with little
oversight and transparency, the high number of approved waivers
is a source of concern about compliance with Buy American laws.
---------------------------------------------------------------------------
\4\Office of the Under Secretary of Defense for Acquisition,
Technology, and Logistics, Report to Congress on Department of Defense
Fiscal Year 2016 Purchases from Foreign Entities, (June 2017) (https://
www.acq.osd.mil/dpap/cpic/ic/docs/FY_16_Foreign_Entities_RTC_USA001870-
17_signed_June_29_2017.pdf).
---------------------------------------------------------------------------
A 2018 study by the Government Accountability Office (GAO)
found a prevalence of data reporting errors by federal
agencies, indicating that the full extent of the use of
exceptions and waivers may not be fully known.\5\ The lack of a
government-wide repository for information about waivers to
domestic content preference is an additional concern.
---------------------------------------------------------------------------
\5\Government Accountability Office, Buy American Act: Actions
Needed to Improve Exception and Waiver Reporting and Selected Agency
Guidance, (GAO-19-17) (Dec. 2018) (https://www.gao.gov/assets/gao-19-
17.pdf).
---------------------------------------------------------------------------
On January 25, 2021, President Biden issued an Executive
Order to update and centralize the Buy American waiver
process.\6\ The order required the Administrator of GSA to
develop a public website to publish information on all
proposed, granted, and denied waivers.\7\ The order also called
for greater oversight of the waiver process by establishing a
more centralized system of review.\8\ Prior to that, on April
21, 2017, President Trump issued an Executive Order aimed at
bolstering Buy American laws and maximizing the Government's
use of goods, products, and materials produced in the United
States.\9\ Notably, the order targeted the overuse of waivers
and exceptions by requiring the heads of federal agencies to
carefully consider the impact of ``dumped'' foreign steel,
iron, or manufactured goods on the price of domestic goods.\10\
---------------------------------------------------------------------------
\6\Exec. Order No. 14005, 86 Fed. Reg. 7475 (Jan. 25, 2021).
\7\Id.
\8\Id.
\9\Exec. Order No. 13788, 82 Fed. Reg. 18837 (Apr. 21, 2017).
\10\Id.
---------------------------------------------------------------------------
The solution to the opacity surrounding the approval of Buy
American waiver requests is to improve transparency in the
federal procurement process. This bill promotes transparency by
requiring a public website for Buy American waiver requests.
The domain, BuyAmerican.gov (already owned by GSA), will
publish information about pending or granted Buy America waiver
requests for public awareness and comment. The bill requires
agencies to justify applications for Buy American waivers on
the website, potentially reducing the incentive to utilize
these waivers as ``loopholes.'' The existence of this website
will give American businesses the opportunity to notify
government agencies when they have the capability to fulfill a
contract with domestic products.
III. LEGISLATIVE HISTORY
Ranking Member Rob Portman (R-OH) introduced S. 732, the
BuyAmerican.gov Act of 2021, on March 11, 2021 with Senator
Christopher Murphy (D-CT), Senator Lindsey Graham (R-SC),
Senator Sherrod Brown (D-OH), and Senator Debbie Stabenow (D-
MI) as cosponsors. The bill was referred to the Committee on
Homeland Security and Governmental Affairs.
The Committee considered S. 732 at a business meeting on
May 12, 2021. During the business meeting, a Substitute
Amendment was introduced by Chairman Peters and Ranking Member
Portman and was adopted by voice vote en bloc. An amendment was
also offered by Senator Johnson and adopted by voice vote en
bloc.
The bill, as amended, was ordered reported favorably by
voice vote en bloc as amended with Senators Peters, Carper,
Hassan, Sinema, Rosen, Padilla, Ossoff, Portman, Johnson, Paul,
Lankford, Romney, Scott, and Hawley present.
The text of this bill was included in the Infrastructure
Investment and Jobs Act (Pub. L. 117-58, Sec. 70931-70941),
which became law before this bill was reported out of
committee.
IV. SECTION BY SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This bill is named the BuyAmerican.gov Act.
Section 2. Definitions
This bill defines Buy American law broadly to include the
Buy American Act (chapter 83 of title 41), Buy America
requirements (section 5323(j) of title 49), the Berry Amendment
(section 2533a of title 10), the specialty metal provisions in
section 2533b of title 10, and the Buy American rules in the
American Recovery and Reinvestment Act (6 U.S.C. 453b).
Section 3. Sense of Congress on Buy American
This section expresses the sense of Congress that every
agency should maximize federal awards and procurements for
items made in the United States by American workers and
businesses.
Section 4. Assessment of impact of free trade agreements
This section requires the Secretary of Commerce, the U.S.
Trade Representative, and the Director of the Office of
Management and Budget to assess the impacts of all United
States free trade agreements and the World Trade Organization
Agreement on Government Procurement on the operation of Buy
American Laws, including their impacts on the implementation of
domestic procurement preferences. It also requires an
assessment of federal permitting processes on the operation of
Buy American laws.
Section 5. Judicious use of waivers
This section requires public interest waivers to be
construed to ensure maximum utilization of items produced in
the United States and be approved by the head of the agency
issuing the public interest waiver.
Section 6. Establishment of BuyAmerican.gov website
This section directs GSA to establish a website with the
address BuyAmerican.gov. The website will include information
on all waivers of Buy American laws that have been requested,
are under consideration, or have been granted by executive
agencies and be designed to enable manufacturers and other
interested parties to easily identify waivers. GSA already owns
the domain name BuyAmerican.gov.
Section 7. Waiver transparency and streamlining for contracts
This section requires that waivers to Buy American laws for
federal grants be posted on BuyAmerican.gov. Specifically, it
requires the Administration to develop a mechanism to collect
information on requests to waive Buy American laws and other
domestic content restrictions, utilizing existing reporting
requirements whenever possible in order to make BuyAmerican.gov
timely and effective.
Not less than 15 days prior to issuing a waiver, the head
of an executive agency shall make available to the public, by
posting on BuyAmerican.gov, a copy of the request to waive a
Buy American law, and information available to the executive
agency concerning the request. The agency will then allow
informal public comment on the waiver request for at least 20
days prior to making a finding based on the request. A waiver
may not be granted if the waiver request was not made available
to the public, or there was no opportunity for public comment
on the waiver request.
Section 8. Comptroller General report
This section requires the Comptroller General to producea
report not later than two years after enactment on the
implementation of this bill.
Section 9. Rules of construction
This section future proofs the legislation by ensuring
BuyAmerican.gov can be moved to a successor information system.
Section 10. Consistency with international agreements
This section ensures that the legislation is applied in a
manner consistent with U.S. obligations under international
agreements.
Section 11. Prospective amendments to internal cross-references
This section future-proofs the citation for the Berry
Amendment in the U.S. Code.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. This legislation was enacted as part of the
Infrastructure Investment and Jobs Act (Pub. L. 117-58, Sec.
70931-70941 (2021)) and was not assessed individually for
intergovernmental or private sector mandates. The statements on
these mandates regarding the enacted bill can be found under
H.R. 3684 on CBO.gov.
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Because S. 732 would not repeal or amend any provision of
current law, it would make no changes in existing law within
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI
of the Standing Rules of the Senate.
[all]